Excerpt:.....intention to defeat creditors - under hindu law unconditional gift once completed cannot be revoked - appeal dismissed. -..........revoked; and secondly this should not depend on the will of the donor. again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift under ex. a-4.all that could be said is that the default of the donee in that behalf amounts to want of consideration. section 126 itself provides against the revocation of a document of gift for failure of consideration. if the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc.'13. it has not been alleged much less proved on behalf of the appellant that the gift in question was vitiated by fraud, coercion or undue influence or was made with the intention to defeat the creditors and under the hindu law an.....

Judgment:

G.B. Capoor, J.C.

1. This second appeal by Smt. Gaurju is directed against an appellate judgment and decree of the learned District Judge Mandi and Chamba Districts affirming the judgment and decree of the learned Additional Sub-Judge Mandi dismissing the suit filed by the appellant for cancellation of a gift and for recovery of possession of the land which was the subject-matter of the gift.

2. The appellant, Smt. Gaurju is the mother-in-law of the respondent Tara Chand. She had gifted the disputed land in favour of the respondent on the condition that he would maintain her during her lifetime and would perform her obsequies after her death. The mutation of the aforesaid gift was sanctioned on 10-6-49. The respondent ceased to maintain her for about three months prior to the institution of the suit and as such she has become entitled to recover possession of the disputed property.

3. The defendant respondent repudiated that the gift was subject to any condition as alleged in the plaint and alleged that the gift was unconditional and it was of his own accord that he maintained the plaintiff appellant and was prepared to do so even in future.

4. The learned trial Court held that the gift was subject to the condition that the donee would maintain the donor but it had not been proved that there was any breach of the aforesaid condition. It therefore, dismissed the suit.

5. The learned District Judge was of the opinion that the defendant respondent had not refused to maintain the plaintiff appellant; rather the latter had herself declined to be maintained by the former. He was further of the opinion that even if the defendant respondent is held to have ceased to maintain the plaintiff appellant the gift was not liable to be cancelled inasmuch as no condition attached to it that it would be liable to be revoked on the donee's ceasing to maintain the donor.

6. The aforesaid findings have been challenged on behalf of the appellant.

7. The first question that arises for determination is as to whether the gift in question was subject to the condition that it would be. cancelled on the donee ceasing to maintain the donor.

8. The aforesaid gift was not evidenced by a written document. A report about the transaction of gift was made by the parties to the patwari and a note of it was made by him in his Rozanamcha as against 4th of March, 1949, vide Ex. P-1. Subsequently mutation of names was also effected in the revenue papers vide Ex. P-2. Both in the Roznamcha and in the entry of mutation it was stated that the gift was in lieu of maintenance and the performance of ceremonies incidental to death. The aforesaid entries purport to have been signed by Jai Singh Lambardar who was examined as a witness on behalf of the appellant and he stated that it was agreed that the gift would be revoked if the donee ceased to maintain the donor. The learned District Judge was not impressed well with the aforesaid statement and in my opinion rightly. It has not been mentioned either in the Roznamcha of the patwari or in the mutation entry that the gift was liable to be cancelled on the donee's ceasing to maintain the donor, and it is difficult to accept the oral statement made by Jai Singh.

9. On behalf of the appellant it was argued that the circumstance that the consideration for the gift was the maintenance of the donor indicated that the gift was liable to be revoked if the donee ceased to maintain the donor and in support of the contention reliance was placed upon the rulings of the Allahabad High Court reported in Balbhadar Singh v. Lakshmi Bai, AIR 1930 All 669, and Jagat Singh v. Rungar Singh, AIR 1951 All 599. In the former case it is true, the following observation was made :

'Under Hindu law, if a person makes a gift to another in expectation that the donee will do more work in consideration of the gift it follows that if the donee failed to do that which it had conditioned fee should do, the gift is revocable.'

10. The aforesaid observation can, however, not be taken to be an authoritative pronouncement for it was later on observed by their Lordships that it was arguable that in the absence of an express power of revocation for failure of a condition the gift cannot be impugned of revoked and that aspect of the matter was not pursued further by them.

11. In the AIR 1951 All 599 case there was an express provision in the deed of agreement executed contemporaneously with the execution of the deed of gift that the donor will have the right to revoke the gift if the donee failed to maintain the donor.

12. The aforesaid case again was based on the interpretation of Section 126 of Transfer of Property Act and it was conceded by the learned counsel for the appellant that that section did not apply to the instant case. The case of Venkatasubbaiah v. M. Subbamma, AIR 1956 Andhra 195, which has been relied upon in the judgment of the learned appellate Court as also on behalf of the respondent, was also based on section 126 of Transfer of Property Act, and as such it was not applicable to the instant case. The observations made therein may, however, be usefully referred to. They were as below:

'The present case cannot be brought in the ambit of the section firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked; and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift under Ex. A-4.

All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc.'

13. It has not been alleged much less proved on behalf of the appellant that the gift in question was vitiated by fraud, coercion or undue influence or was made with the intention to defeat the creditors and under the Hindu Law an unconditional gift once, completed cannot be revoked.

14. I, therefore, see no reason to differ from the conclusion reached by the learned District Judge.